Supreme Court Decision, A Rebuke To Arizona?

This is TELL ME MORE, from NPR News. I'm Michel Martin. In the program today we will head to West Africa to find out why religious divisions have turned violent in some parts of Nigeria. More than 100 people have died in just over a week after violent attacks on Christian churches led to a violent response. We'll talk more about what's behind this and how the Nigerian government is responding. That conversation is later in the program.

But first, the Supreme Court, today, announced a long-awaited decision on one of this country's most intensely debated issues - the issue of immigration and enforcement. The court addressed some elements of Arizona's tough immigration law SB1070. The court struck down key provisions of the law for intruding on federal authority over immigration. However, the court did not rule on the high profile provision allowing police to check the status of the people they stop, the so-called show me your papers provision.

We wanted to talk more about this so we've called NPR's senior Washington editor Ron Elving. I'm also joined by Gabriel Chin. He is a professor of immigration law at the University of California Davis. He previously taught at the University of Arizona and has been following this legislation closely. Also with us, Marc Miller. He is vice dean and a professor at the University of Arizona College of Law.

Thank you all so much for joining us today.

RON ELVING, BYLINE: Good to be with you, Michel.

GABRIEL CHIN: Thank you.

MARC MILLER: Glad to be here.

MARTIN: Ron Elving, I'll start with you. Could you just talk more about this split result?

ELVING: The split result is that the portion of the law that has gotten most of its attention, the 2B provision, was not really ruled on and we expect there to be further litigation on it. One thing to bear in mind here is that it really hasn't been enforced because first a district court and then a federal appeals court stayed that.

So we haven't really got an enforcement record on this and when we get one there are pending litigation cases that - coming from the ACLU and some immigration groups and so on, that are going to test this law further. And the justices indicated that they were expecting that to happen.

This gets a little murky on the question of what is a police stop and whether or not somebody has to be stopped on suspicion of actually creating or committing some sort of a crime - a break-in, somebody being pulled over for a traffic violation - or whether or not a police stop of some other nature might also trigger this kind of a check.

MARTIN: But just to clarify, the reason that the court did not address that particular provision, the provision that, as we said, is the kind that seems to evoke a particularly emotional response among average citizens is that why? Because it had been stayed already by a lower court?

ELVING: Because they did not sense that it was as clear a violation of the supremacy of the federal government and these connections, because the essential decision that was made here - and it was a rather unusual majority of five to three with Elena Kagan recusing herself because of her previous role in this law and the litigation as solicitor general.

But Chief Justice Roberts joined the other three liberals on the court in this ruling, and so did Justice Kennedy. This rather unusual coalition more or less reflects a kind of compromise here that they saw this law as essentially unconstitutional with respect to the status violation, with respect to prohibiting these people from applying for a job.

But they were willing to consider what will happen when this particular enforcement begins, which it hasn't done yet, so they left the door open for further litigation there.

MARTIN: Professor Miller, you were telling us that you were preparing for a mixed decision and I'd like to ask - as briefly as you can, you know, obviously - why you thought that and is the decision split in the way that you thought it would be?

MILLER: Yes. So this is very much the kind of split that I expected and indeed looking back two years when Arizona first enacted SB1070 and it was signed into law, right up front, along with a number of other scholars and observers, the question was where any federal court, much less the U.S. Supreme Court, would ultimately draw the line.

This decision is also consistent with what the court focused on in the oral argument. It is very interesting to see that on this critical section 2B, the court has indeed stepped back. There's some fencing going on in the opinions about what might happen next in terms of litigation, but Justice Kennedy's majority says that there's uncertainty about this provision.

There's an enormous amount of ambiguity about what it might mean and what it might mean as actually applied and that without seeing this complex - short but complex - provision applied on the ground the court was not ready to make a decision. They did say this opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into affect.

So it's certainly an invitation to the continuation of the litigation that has already begun on other contexts.

MARTIN: Professor Chin, you told us back in April that you actually expected the court to strike down this law so I wanted to ask you about your, you know, perspective on this ruling.

CHIN: It's a systematic defeat for the state of Arizona. I would hardly call it a mixed decision. I would call it basically the best case scenario for the United States. Of the four provisions three were deemed flatly invalid and the remaining one, 2B, it's true that the court didn't technically decide its constitutionality, but as I read the decision what they're saying is if the state of Arizona reads this to mean nothing, if they read it to mean basically that they have no additional powers, then it's constitutional.

But if they read it to mean more than that, then there are serious constitutional doubts about it. They - the big issue with 2B, for example, is whether in the course of asking someone for their papers you can hold them longer than would be justified by the initial stop, detention, or arrest that got the police into contact with them in the first place.

And the court here seems to say, maybe not. At least there's significant doubt about that. And so the court seems to be in the funny position of saying 2B is constitutional so long as it grants the Arizona police the same power that everybody else has. Which is, you can go up to anyone you want, ask them a question.

If they don't want to answer, they don't have to answer, and you can't hold them to make them answer. So I see what they have done here, at least potentially, as a face saving measure for the state of Arizona, but I doubt that they're reading this as a resounding affirmation of their power, even under 2B.

MARTIN: You know, there's been a lot of talk about this provision and there are other places across the country where legislatures have evaluated or tried to implement similar provisions. So Professor Chin, what affect will this have on those discussions in other places?

CHIN: This is going to have a very broad effect, all across the country. All of the provisions that are similar to the ones that were struck down here in other states are now void. So they're off the table. The other provisions like 2B, people are going to have to worry about whether they have any vitality left either.

MARTIN: Professor Miller - I was going to ask him the same - Professor Miller, I was going to ask you the same question. What's your assessment of how this ruling will affect other states that have followed Arizona's lead on some of these provisions?

MILLER: Well, so I think that this same outcome could have been written in a way which would be perceived as more sympathetic to states that are trying to direct their officers to be aggressive on assisting or working with the federal government and immigration enforcement. Part of what Jack is responding to and Ron described, is an opinion which does seem to come down firmly and with an interesting alignment, opposed to much of the law and to hint or suggest that 2B, if applied, will need to be limited.

But by reaffirming the power of states under existing law to check on immigration status, at least within the legitimate bounds of stops and investigations and indeed by emphasizing the right of the states and the invitation from Congress to do so, a state that wanted more narrowly to focus on directing their line officers within these bounds to do investigations can probably do so, and do so with less risk of challenge and, indeed, the court - the same things that Jack points to, saying these are triggers the court was warning states away could be read as guidance to states to how to constitutionally direct their officers to engage in status checks.

MARTIN: Ron Elving, could you clarify a little bit more, though? Professor Chin was saying that he thinks this is actually a very resounding defeat for the state of Arizona. Other states have followed Arizona's lead in a number of provisions, not just the show me your papers provisions.

Could you talk a little bit more about what the court explicitly struck down?

ELVING: The court made it very clear that the state cannot set up separate laws governing immigration. For example, a penalty - a misdemeanor penalty for failing to carry identification papers or making it a crime for an undocumented immigrant to apply for a job or just picking somebody up and arresting them simply on suspicion that they are in the country illegally.

These are things that this law attempted to do and these were explicitly struck down in a way that's not coming back. The only thing the court really left the door open on was this question of whether it was a proper question, if you had some other reason to take somebody into at least temporary custody, to seek some sort of information about their immigration status. And the court made it very clear they're going to ask, are these people being detained longer, as the professor said? Is it a case of racial profiling that this question is being asked and is it a violation of equal protection under the law?

And since all of those issues were clearly raised by the justices in this opinion, they seem to be asking for the next litigation shoe to drop.

MARTIN: So we will be seeing this again. Very briefly, Ron, before we let you go, a new poll conducted by the New York Times and CBS News says that just 44 percent of Americans surveyed approve of the job that the Supreme Court is doing.

Now, it is an interesting finding because the Congress - I mean, because the court's approval rating is still a lot higher than Congress', but more generally there's been a decline in approval of - or major institutions sort of more generally.

But I am wondering and I am - I apologize for asking you to speculate how you think a decision like this plays into Americans' assessment of the job that the Court is doing.

ELVING: I don't believe this particular decision with the nuances of it and with the on the one hand, on the other hand that this decision will have much of an impact by comparison to what'll happen with health care on Thursday, when we expect to get that decision, which I think most people will notice. And we don't know which way that's going to go or which way it's going to affect the court's popularity, but I think that will pretty much, you know, overwhelm what we saw from today.

Although I do think what they did today with respect to campaign finance, which we'll talk about on another occasion, is another thing that's beginning to percolate into the public consciousness.

MARTIN: Ron Elving is NPR's senior Washington editor. He was kind enough to join us in our Washington, D.C. studios. Also with us, Gabriel Chin. He is a professor of immigration law at the University of California Davis School of Law. We caught up with him on that campus. And Marc Miller is the vice dean and a professor at the University of Arizona College of Law. He joined us from Beaufort, South Carolina, where he was kind enough to interrupt his vacation to speak with us.